Sullivan

Plaintiff brought this action to recover damages for injuries she sustained by reason of a collision between two automobiles, one operated by the defendant G. L. Richardson and the other by defendant W. A. McCord on Tustin and Fairhaven Avenues, in Orange County on the thirtieth day of January, 1930. The plaintiff recovered a judgment for $6,0-75 damages and $109.20 costs, against defendants G. L. Richardson, W. A. McCord, S. H. Woodruff and Dana Point Syndicate, a common-law trust.

The trial was had by the court without a jury. There are two appeals from the judgment, one by defendant W. A. McCord and the other by defendants S. H. Woodruff and Dana Point Syndicate. Defendant G. L. Richardson does not appeal.

Plaintiff alleges that she was a passenger in the automobile operated by defendant McCord at the time of the accident and was injured. Defendants McCord, S. H. Woodruff and Dana Point Syndicate appeared by joint answer and defendant Richardson appeared by separate answer. The defendants Woodruff and Dana Point Syndicate, after the trial had been progressing for several days but before plaintiff rested her case, applied to the court to amend their answer by denying that…

In the first cause of action set up in the complaint the plaintiff alleged, among other things, that she was a passenger in an automobile driven by the defendant McCord and that she suffered injuries through the gross negligence and wilful misconduct of this defendant. In a second cause of action, she alleged that she was so riding as a passenger and that she suffered injuries through the negligence of McCord. At the close of the plaintiff’s evidence the court granted a motion for a nonsuit as to the second cause of action.

While the order of nonsuit as to the second cause of action was erroneously entered, no appeal has been taken from the same and the error is immaterial, since the first cause of action sufficiently alleged that the plaintiff was a passenger, and that she suffered the injuries complained of through the negligence of the defendant McCord. Gross negligence necessarily includes negligence, and the fact that the allegation went further than was needed and alleged gross negligence resulted in no harm, and may be treated as surplusage.

As shown in the preceding opinion, the evidence is ample to sustain the finding that the plaintiff was a passenger and not a guest…